Family Law Disputes Are Expensive - Here are Our Top Tips to Minimise Legal Costs During Your Matter

We give practical and economic advice every day. Part of our advice involves acknowledging that retaining a Family Lawyer is expensive and should involve frankness about legal costs and saving on legal costs wherever possible.

After working in this area for many years, we are able to identify a number of factors that can certainly contribute to making your Family Law matter endure for longer and be more expensive than it may have needed to be.

Below you will find comments on our “Top 5” ways to save money on legal costs within a Family Law Dispute.

1.   Pick your battles

Have you ever heard the phrase “it’s a matter of principle” or had the feeling that you’d like to be vindicated by findings in your favour in Court?

That sort of attitude can be expensive, as well as engendering an “all-pervading” attitude towards litigation which does not permit you to objectively make decisions. Take into account that “trials” in Court, presently take years to come along and that Court resources are slim on the ground due to chronic underfunding.

Also take into account that the legal costs involved in the “principle” might outweigh the value of what you are fighting over.

By way of example:-

• Early in my career, I heard people fighting over a “George Foreman Grill” and being a young 20’s single male who lived at home, I was thinking that this Grill must have been the “Miele or Gaggenau” of Grills and be worth something in the tens of thousands of dollars. Two lawyers, both probably charging back then, $350 per hour, were fighting over something that cost “three easy payments of $49.99” via Demtel.
• More recently, I saw an Enforcement Application play out over the family dog, attended by Solicitors, Barristers and clients, probably at a cost of $10,000 per day in legal costs each. For those of you wondering, it was a King Charles Cavalier. Cloning may well have come cheaper.

None of those parties put their objective and financially responsible hats on before determining their course. On top of that, the Judge and Court had to set aside resources for those matters, ahead of deserving parenting or genuine financial cases which competed for those resources.

We encourage you to obtain quality legal advice to determine what “principles” are worth fighting for, and which “principles” will just end up leaving you with a big legal bill.

2.   Compromise

Fighting ‘tooth and nail’ and heading straight to Court to take someone “for all that they have got” is frame of mind that will be costly and unhelpful in resolving your dispute. Likewise, sometimes people forget that in order to seek an extra $50,000 or $100,000 in property settlement might actually cost precisely that much to pursue when you see the legal costs required to be expended to maintain and argue the dispute.

Sometimes it is not a matter of who is ‘right’ and who is ‘wrong’ and it might be necessary to reach a compromise for the sake of resolving your matter swiftly following the breakdown of relationships which will ultimately promote you to move on with your life. Compromises should always take into account the “opportunity cost” of what is involved, in terms of the legal costs required to be staked to have the argument, the delay and impacts upon you personally, time off from work for Court and instructing lawyers and the deleterious impact of the stress of having litigation which could be decided against you.

Whilst parties are encouraged by the Court to participate in mediation wherever possible, people forget that a compromise might be best and they participate in unfocused mediations.

Through compromising and reaching an agreement in mediation, you achieve certainty of decision (instead of leaving the case in the hands of someone who knows very little about you, your family and your feelings) and removes any ongoing Court involvement which can save you thousands of dollars in legal fees and stress.

Compromise can be of the whole matter or at least via a narrowing of the issues remaining in dispute, each of which can help you save money moving forward by only focusing on what is necessary to resolve your family law dispute.

By way of example:-

• One of our client’s was involved in a dispute about the value of some shares and when the dispute first arose, offered to settle for the payment of money tallying approximately $60,000 (linked to the rise in share value);
• The Husband considered it a matter of principle and would not compromise. He retained a large National law firm, a Queen’s Counsel level barrister and boxed on with his “principled position”;
• He wrote nasty emails to the Wife accusing her of being a gold digger;
• By the time of trial, the Husband complained that he had spent $400,000 in legal costs;
• Similarly by the time of trial, the shares (surprise surprise) had risen further in value;
• The Husband had to pay his own legal costs and compromise to pay the Wife a figure approaching $200,000;
• I recently read that the Husband had complained bitterly to the press about the costs of the Family Court and the Wife’s conduct having cost him dearly;
• The Wife resisted having us write to send a copy of the opening offer and reminding him of his lack of compromise.

 3.   Stay on track

Our smart phones allow us to send communications at literally anytime and anywhere. Many people have a view about family law and aren’t afraid of sharing it or sharing their experiences. Google produces generic information, which is often ill-informed or subjectively only proper or accurate in someone else’s case (not yours).

It is important that you remember that venting to your lawyer on subjects that you have already discussed, especially if not relevant to your matter, could quickly become very expensive.

It is important to stay on track with your approach, including in relation to how to conduct your communications with your own lawyer.

At the end of the day, if you want to email your lawyer about how you feel about your ex-partner after a few too many drinks or about something trivial or not fixable by the law or legally available remedies, then you need to remember that you will most likely be charged for their time to read that email.

In order to save you money, consider who within your support network is best placed to help you with your feelings or to help recover from the grief of separation. It may even be worthwhile engaging a professional such as a GP, a counsellor or psychologist to discuss how you are feeling about your family law dispute and separation. The benefit in seeking out a counsellor or psychologist is they can assist you to rebuild and move forward with your life. You will have less need to “lean on” your lawyer for support and they can get on with handling the legal issues.

It is often better to draft a letter or email to your lawyer and then re-read it before sending your instructions so as you ensure you remain on track and not asking your lawyer to “tell you how you should feel or cope with something that has happened”. Instead, give facts and ask for advice and then give focused instructions. This will be far more productive than getting side-tracked.

By way of example:-

• The client in a property case who is intently focused on telling you about intimacy issues or extra-marital relationships despite the law in Australia having been a “no fault” system since the mid-1970’s;
• The client who complains that they did not want their relationship to end, but present in a situation where their spouse has long since made the decision to separate – and the couple is clearly on different points on a grief scale, one of which having had further time to think and heal than the other; and
• The client who presents with resentment that just as he or she develops a health issue, the relationship ends.

None of those are things that lawyers can do other than empathise with, but get on with handing the legal issues and rely upon you to recover, heal and remain objective and receptive to legal advice.

4.   Get organised

In order to identify the asset pool between parties in dispute, there is an obligation under the Family Law Rules that each party will provide to the other full and frank disclosure of their financial circumstances. When your lawyer asks you to provide them with relevant financial documents, having these documents ready and available will save you money.

Remember that you will often have spent decades arranging your affairs with a financial planner or accountant and your lawyer not only needs to understand what particular arrangements you have in place and why, but also must chart a course towards extracting your entitlements from a pool of assets of your making.

If your lawyer needs to chase you for these documents or if there is a need to issue a subpoena to obtain the documents, then this will accelerate your legal costs and delay your matter which in some instances, could have otherwise been avoided through being organised.

By way of example:-

• A professional male may only own assets via the shield provided by holding assets in his Wife’s name or otherwise via companies and trusts. Unravelling companies and trusts might attract taxation issues;
• Your duty of disclosure often extends to a need to permit your lawyer to read the information and give you advice about it, but also collate it in readiness for supply to the other party and to place into evidence before the Court; and
• Not supporting your lawyer getting a good understanding can often lead to higher costs and the obvious problem of an unprepared case – or worse, unanticipated tax or stamp duty consequences the lawyer could have tried to avoid for you.

5.   Take and follow the advice you pay for

Often we hear our clients bring up the advice that their friend, neighbour or the other parent at soccer training gave them. As a young lawyer, I once heard a Queen’s Counsel level barrister tell a client, “Mrs X, you don’t pay a dog to do the barking and then bark yourself, do you?” in a discussion about whether she would continue emailing demands or thoughts to her ex.

Whilst some cases in family law may be similar, not every case is objectively the same (whether parenting or property/financial cases). Sharing information or relying upon information about how the Jones’ resolved their matter at Sunday’s BBQ is inherently an unreliable and unhelpful situation if you go on to think that your case will just follow that lead.

What happened in your life (remember you never get the full story which had taken years to develop in 5 minutes) is unlikely to be a reflection of what happened in someone else’s giving rise to their reported outcome.

When you have retained a Family Lawyer to assist you with your individual family law dispute, it is important that you listen to their advice because it will have been tailored to your circumstances. It is, by all means, ok to ask after things you want to enquire about. For example, “My friend achieved a child support departure order. Do you think I should apply for that?” would be an entirely appropriate query if your spouse was driving a Ferrari but reporting a $20,000 taxable income in tax returns. It would not be an appropriate step if your spouse was a reliable contributor to private school fees and generous in co-operating to meet the planned and reasonable needs of the children.

As a result, tip #5 is that if you are paying a lawyer for legal advice, it is always wise to listen carefully and to follow the advice that you paid for. Ignorance of advice can lead to very adverse consequences.

By way of example:

• We became aware of a situation another firm found themselves in, that their client was advised that a caveat should be lodged against the title to a property held only in the other spouse’s name and there had been some threats made to see the client without a property settlement. The caveat would have prevented dealings with the property and been notice to the World of the client’s claim for an interest in the property.
• Without the caveat, the property was available to be cheaply sold off, the cash taken overseas and the client unable to secure any real property settlement, given the other party simply disappeared to a Muslim-majority Country where the rights of females and overseas Western Court Orders were largely ignored.

Taking advice and following it for implementation would have seen tens of thousands of dollars saved.

For reasons including but not limited to those set out in this article, the contents are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances in all instances to be sure you are on the right track.